Sources of Service Law

Jul 23, 2024

Sources of Service Law Lecture Notes

Introduction

  • Beyond Law CLC aims to provide legal knowledge on various aspects of law, including service law.
  • The service law series will cover more than 10 sessions to discuss various issues comprehensively.
  • Speakers and sessions can be accessed on Beyond Law CLC's YouTube channel.

Topic for Today: Sources of Service Law

  • Focus on sources: acts, rules, executive instructions, circulars, office orders.
  • Importance of chronology and meticulous drafting as emphasized by Mr. PS Rajagopal.

Hierarchy of Laws in Service Law

  1. Constitution of India
    • Supreme source of all laws.
    • Part 3: Fundamental rights
    • Part 14: Services under the state and union governments.
    • Article 12: Definition of the state.
    • Articles 14, 16, 19, 21, 23: Rights and protections.
    • Part 4: Directive Principles of State Policy.
  2. Legislation
    • Enactments made by Parliament and state legislatures.
    • Statutory rules made under delegated powers.
  3. Executive Instructions
    • Issued under Article 162 (State) and Article 73 (Union).
    • Used in absence of specific statutory rules.
  4. Circulars and Office Memoranda
    • Initially seen as non-enforceable but now recognized if they create rights/ obligations.
  5. Judgment Law
    • Case law and judicial decisions that interpret and expand upon written law.

Types of Employment and Applicability

  • Private Sector Employment: Governed by simple contracts but often not enforceable under the Specific Relief Act.
  • Public Sector and Government Employment: Governed by a hierarchy of laws including statutory rules and executive instructions.

Key Points

  • Non-State Sector Employment: Typically not covered by service law due to Section 14 of the Specific Relief Act, which bars specific performance of personal contracts.
  • Public Sector Employment: Includes government and quasi-government bodies; covered by various constitutional provisions and statutory rules.
  • Part 14 of the Constitution: Provides additional protections like Article 309 and 311 for governmental employees.

Evolution and Interpretation by Courts

  • Service Law in Private Sector: Shift from simple enforceability to considerations of public policy and fairness (ex. unconscionable contracts).
  • Supreme Court Judgements:
    • Uphold the applicability of certain service protections to public sector employees.
    • Highlight enforceability of office memoranda under certain conditions.
    • Clarifications on administrative instructions and their limits.

Practical Insights and Recommendations

  • Understanding the judge's perspective and building arguments to align with it.
  • Importance of highlighting weaknesses in a case before focusing on strengths.
  • Need for thorough preparation and knowledge of recent judgements.
  • Use of fundamental literature and reference books for deeper understanding.

Conclusion

  • Service Law is dynamic and complex, requiring a balance of statutory law and judicial interpretation.
  • Practitioners should stay updated and adaptable to effectively navigate and argue service law cases.
  • Emphasis on equality and fairness in professional practice aids in strong legal arguments and client relations.

Full transcript